Anne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | Hansard source

As the Minister representing the Minister for Government Services, I rise to respond to the three recommendations contained in the third interim report of the Community Affairs References Committee's inquiry into Centrelink's compliance program that were adopted by the Senate on 2 September 2020. Protecting the integrity of the Commonwealth social security system is a core responsibility of any government. The proper administration and distribution of taxpayer funds to those who are eligible for them, and the recovery of debts from those who are not, is essential to fulfilling that responsibility. There is a longstanding principle that people should be paid correctly according to their individual circumstances. If people receive welfare payments they are not eligible for, it is only fair that they pay that money back to the taxpayer.

The government made changes to income compliance. When the government was made aware that the ATO average employment income data was not of itself sufficient to raise a social security debt, it acted quickly to fix the issue. As announced by the Minister for Government Services on 19 November 2019, Services Australia is no longer using income averaging alone to determine debts. As of 1 October 2020, 374,888 customers have received refunds or had their debts zeroed, with over $650 million refunded.

In response to the Senate's resolution arising from the Community Affairs References Committee's third interim report and in relation to the resolution of the Senate adopting the recommendations of the inquiry, I want to assure the Senate that the Minister for Government Services—me—together with the Department of Social Services and Services Australia have full regard for the process of the Senate and continue to cooperate to the fullest extent possible with the Community Affairs References Committee's ongoing inquiry into Centrelink's compliance program. It was not the intention of the government, or of officers of Services Australia or the Department of Social Services, to show disregard for the resolutions of the Senate in making public interest immunity claims.

Further, I am advised that the failure of the Minister for Government Services to respond to correspondence from the Community Affairs References Committee of 6 April 2020 was the result of an administrative oversight. There was no intention to not respond, and the Minister for Government Services has regularly engaged with the Senate and its committees to explain the government's position in relation to public interest immunity. Updates and additional explanations have also been provided as litigation in relation to the compliance program has evolved.

In addition, government agencies and witnesses have responded to many hundreds of questions at hearings and on notice in relation to the design and implementation of the compliance program. The government does not make public interest immunity claims lightly and without careful consideration of the particular harm to the public interest. The government understands and accepts there is significant public interest in the matters before the committee. However, it would not be in the public interest to disclose some of the information that has been requested.

The current class action before the Federal Court involves very significant and potentially higher value claims against the Commonwealth. The trial for this litigation has now been set down for hearing on 16 November 2020. The applicant's claims in this litigation have been amended several times since the litigation commenced. In considering these evolving claims, the government has continued to review its position in relation to the prejudice it might face in defending the claims if certain documents were made public. As a result, public interest immunity claims have been reiterated and further information about claims has been provided to the Senate committee as necessary.

While the Senate has considered some of the government's previous public immunity interest claims, circumstances have now changed. On 16 September 2020 the applicants were given leave to file a second further amended statement of claim. This amended statement of claim alleges that the Commonwealth had particular knowledge which goes to the legal understanding of the program. While not clearly particularised, the applicants have also named particular ministers and senior APS employees as having knowledge of particular matters at particular times. These are very serious allegations and are completely rejected by the government.

Given the nature of the allegations being made by the applicants in class actions, the content and timing of any legal advice provided in relation to the Income Compliance Program is directly relevant to the issues to be decided by the Federal Court in the proceedings. Disclosing the content of any legal advice, or the date of it, would obviously have the potential to prejudice the Commonwealth's ability to defend the claims made by the applicants. The Commonwealth has discovered more than 200 documents in the class action over which legal professional privilege has been claimed. The Federal Court has upheld the Commonwealth's legal professional privilege claims over every one of those claims that has been the subject of challenge.

The position taken by the government is consistent with past practice over many years and under different governments. Former Attorney-General the Hon. Gareth Evans QC told the Senate:

Nor is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle.

More recently, former Attorney-General George Brandis said:

What it represents is both a statement of the universal practice of all Australian governments since Federation in relation to legal advice, subject in exceptional circumstances to waiver, I acknowledge, but that is something that is seldom done and is never done, nor should be done, if the advice to government is that the publication of the advice would prejudice the legal position of the Commonwealth.

The third interim report has also commented on the executive minute to the Minister for Social Services dated 12 February 2015. The subject of the minute is a public interest immunity claim by the government on the ground that its disclosure would or could reasonably be expected to reveal the deliberations of the cabinet. Notwithstanding this, the third interim report, adopted by the Senate, seeks production of the minute. While the minute was provided to the Commonwealth Ombudsman, it is important to note that the limited disclosure to the Ombudsman in these circumstances is not consistent with the maintenance of cabinet confidentiality. It should also be noted that, as a part of the class action litigation, the Federal Court upheld claims of public interest immunity in relation to such documents. This type of claim for public interest immunity in relation to material supporting cabinet deliberations and decision-making has also been consistent practice by successive governments and was supported by the then Minister for Climate Change and Water, Senator the Hon. Penny Wong, when she stated:

Last week the government opposed a motion for a Senate order for me to produce departmental documents relating to management options for the lower lakes . The government did so on the basis of extensive precedents including those set by the previous government where advice to government of a similar nature—that is, for the purposes of government’s deliberative processes—had not been provided on the order of the Senate. Those opposite cannot possibly take issue with that.

That was on 1 September 2008.

The third interim report noted that it may be appropriate to disclose the minute to the committee in camera. However, disclosing the deliberations of cabinet to opposition and crossbench senators would not maintain the well-established principle that the deliberations of cabinet should be able to be conducted in secrecy, nor would it preserve the freedom of deliberation of the cabinet. By making a public interest claim in respect of the minute, the government is doing no more than establishing a well-established right to protect the public disclosure of cabinet deliberations in the same way as has been done by past successive governments. A letter from the Minister for Government Services responding to these matters has also been provided to the President of the Senate.